Hard National Security Choices

[Updated 3:08 p.m] Last night, the Senate approved Senator Dianne Feinstein’s amendment (No. 3018) to the pending NDAA bill, regarding the military detention of citizens and lawful permanent residents. The vote was 67-29.

As Lawfarers well know by now, the amendment says that authorizations to use force and like statutes will not authorize the military detention of citizens and LPRs captured within the United States—that is, unless “an Act of Congress expressly authorizes such detention.” During last night’s debate [note: this is an initial transcript only], a handful of Senators set out their interpretation of the amendment’s “express authorization” requirement.

Armed Services Committee Chairman Senator Carl Levin took the position that Congress can “expressly authorize” detention within the meaning of the Feinstein amendment without saying so—in light of Hamdi’s analysis of the AUMF and the Non-Detention Act. From his remarks:

The Feinstein amendment provides that no authorization for the use of military force may be construed to authorize the detention of U.S. citizens or lawful resident aliens who are captured inside the United States, unless–and this is a big “unless”–an act of Congress expressly authorizes such detention.

As I read the amendment, it says the military detention of U.S. citizens may be authorized in accordance with the law of war as long as this action is expressly authorized by Congress. Further, the amendment’s requirement for express authorization applies only to the detention of U.S. citizens who are captured inside the United States. So no such authorization would be required for the detention of a U.S. citizen in the course of military operations overseas. I believe it is appropriate that Congress focus on the issue of military detention at the time they authorize the use of military force, as would be required by the Feinstein amendment.

As the Supreme Court has stated: Detention is a fundamental and accepted incident to armed conflict. Without such authority, our Armed Forces could be put in the untenable position of being able to shoot to kill but not to capture and detain enemy forces.

As to the ongoing conflict, I believe the 2001 authorization for the use of military force authorized the detention of U.S. citizens when appropriate in accordance with the laws of war. I base this view on the fact that the Supreme Court has said so.

In the Hamdi case, the Supreme Court considered the relationship between the AUMF and the nondetention act which prohibits the detention of a U.S. citizen except where authorized by an act of Congress. The Supreme Court held in Hamdi that this statute does not preclude the detention of U.S. citizens on the battlefield in Afghanistan because the 2000 authorization for the use of military force, quoting the Supreme Court, “is explicit congressional authorization for the detention of individuals” in such circumstances. The Court explained that such detention is so fundamental and accepted as an incident to war as to be an exercise of the “necessary and appropriate force” that Congress authorized the President to use in the AUMF. In other words, the Supreme Court has already concluded that the authorization to use necessary and appropriate force is an explicit authorization to detain enemy combatants in accordance with the law of war, and that meets the test of the Feinstein amendment.

Any other conclusion would lead to absurd results, under which we would tie the hands of our Armed Forces even in the face of an actual invasion. For example, if a group of terrorists were to approach one of our Navy bases in boats loaded with bombs, our sailors protecting those ships at that base would be in the untenable position of being able to shoot to kill, but not to capture the enemy forces if Hamdi did not reach the conclusion it did.

Similarly, in the unthinkable event that we were to experience a 9/11-type attack, our military would be in the untenable position of having the authority to shoot down the hijacked aircraft but not to force them to land and to capture the enemy hijacker. Of course, we could not expect our military to inquire as to whether any of the enemy force were American citizens before deciding on the level of force to be applied.

As the Supreme Court explained in its Hamdi decision, “the capture, detention, and trial of unlawful combatants, by ‘universal agreement and practice,’ are ‘important incidents of war”’ and a “fundamental and accepted incident to war.”

What the Supreme Court said in Hamdi is explicit in the AUMF, in the authorization for use of military force, the core “law of war” authority for our military to capture and detain those who join enemy forces at a time of war and plan or participate in attacks against us. This core authority to use less than lethal force, rather than lethal force, in appropriate circumstances must be available to our military whenever and wherever it engages with the enemy.

Again, Senator Feinstein’s amendment does not prohibit the military detention of U.S. citizens who are captured or apprehended inside the United States because a U.S. citizen who joins a foreign army and attacks the United States should be subject to detention as an enemy combatant if it does not prohibit military detention and if it is expressly authorized by law. I read this as a statute authorizing the use of military force itself or some other act of Congress.

This—especially the language above, which I’ve italicized—doesn’t jibe with the plain meaning of Feinstein’s proposal. According to Levin, Congress “expressly authori[zed]” domestic citizen and LPR detention—in satisfaction of the Feinstein amendment—already, by way of the AUMF, even though the latter did not mention detention at all (and is among the class of authorities which presumptively do not permit domestic non-criminal detention of covered persons). Clear statements just got less clear, in other words, certainly less clear than what the Second Circuit required in Padilla.

Senator Feinstein had noted the Second Circuit’s ruling in comments she made earlier in the evening:

Mr. President, the amendment before us is cosponsored by the distinguished Senator who just spoke, Senator Lee, as well as Senators Coons, Collins, Paul, Lautenberg, Gillibrand, Kirk, Tester, Johnson, Sanders, Whitehouse, Heller, Baucus, DeMint, Webb, Klobuchar, Bingaman, Rockefeller, Begich, and Boxer. An amendment similar to this received 45 votes in the last session.

I wish to spend a moment on the genesis of this amendment because, for me, it goes back to April 1942, the day a Western Defense Command and Fourth Army Wartime Civil Control order went out in San Francisco with instructions to all persons of Japanese ancestry, that: All Japanese persons, both alien and nonalien, will be evacuated from the above designated areas by 12 o’clock noon on Tuesday, April 7, 1942. No Japanese person will be permitted to enter or leave the above described area after 8 a.m. Thursday.

That was in the city of San Francisco.

What was created was an internment camp near the city which became a staging area for the placement of Japanese Americans in detention camps without charge or trial for the remainder of World War II.

This was Tanforan Racetrack, directly south of San Francisco. One Sunday afternoon–I was a small child in 1942–my father took me down to show it to me. This is what I saw. We see stalls made into bunk houses. We see the center of the field made into barracks.

We see the little places where individuals were kept. We see Japanese-American citizens who did nothing wrong who were being interned for years during World War II.

It was shocking. Then it took until 1971 for a bill to be passed and then signed by President Nixon reversing the policy. That bill was called the Non-Detention Act of 1971, and it repealed a 1950 statute that explicitly allowed detention of U.S. citizens. That 1971 bill said–and I quote:

No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress.

Since then and after 9/11, various cases were litigated and went as far up as the Supreme Court. One of them in 2004 was Hamdi v. Rumsfeld, and it addressed a very narrow issue involving a citizen captured on the battlefield of Afghanistan. Then a second case, Padilla v. Rumsfeld, in the Second Circuit Court of Appeals involved an American citizen captured in the U.S.

So the question is whether the Non-Detention Act of 1971 prevents U.S. citizens captured in the U.S. like Padilla from being detained or whether the AUMF passed after 9/11 authorizes such law of war detention in the U.S.

What we are trying to do with this simple amendment is what is called a clear statement rule, to say once and for all:

An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States unless an Act of Congress expressly authorizes such detention.

I know this is a sensitive subject, but I believe we stand on the values of our country, and one of the values of our country is justice for all. And we have a Constitution that has 7 articles and 27 amendments that give us fundamental protections.

This amendment, which builds on the continuing application of the principles behind the Non-Detention Act of 1971, would provide very clearly that no military authorization allows the indefinite detention of U.S. citizens or green card holders who are apprehended inside the United States. Some may ask why just include citizens and green card holders. Let me be clear, if I could further and add “all persons” and get as many votes, I would. I do not think it would, and we have looked into how to do this for a year now. So we have limited it to what we believed could get the maximum number of votes in this body.

Here is the point of this amendment: What if something happens and you are of the wrong race in the wrong place at the wrong time, and you are picked up and held without trial or charge in detention ad infinitum? We want to clarify so this cannot happen; so that the law does not permit an American citizen or a legal permanent resident to be picked up and held without end, without charge or trial.

I want to say that the FBI and other law enforcement agencies have proven time and time again that they are up to the challenge of detecting, stopping, arresting, and convicting terrorists found on U.S. soil.

I have a document that was prepared by the Intelligence Committee staff lists 98 terrorists who have been arrested and are on their way to conviction and will do time, many of them life sentences, in Federal prisons, and these are just those arrested in the last 3 or 4 years.

Since January of 2009, there are 98 who have been successfully arrested. I think it is important to understand that suspected terrorists who may be in the United States illegally can be detained within the criminal justice system under four options that exist today. They can be charged with a Federal or State crime and held. They can be held for violating immigration laws. They can be held as material witnesses as part of a Federal grand jury proceedings. They can be held under section 412 of the PATRIOT Act for up to 12 months.

This amendment is not about whether citizens such as Hamdi and Padilla–or others who would do us harm–should be captured, interrogated, incarcerated, and severely punished. They should be and they are.

It is about the innocent American, again in the wrong place, at the wrong time, who gets picked up, like these innocent Japanese Americans shown in this picture who just happened to live in a certain part of the United States, in my hometown, San Francisco. But this was what happened. People were picked up and held for the duration of the war–just because of their race.

Finally, I want to quote Justice Sandra Day O’Connor, who wrote for the plurality in the Hamdi decision in 2004: As critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat.

So it is my hope we can clarify U.S. law to state unequivocally that the government cannot indefinitely detain American citizens or legal residents captured inside this country without trial or charge.

We live with the stain of how we treated some of our own people during World War II. It should not be repeated.

About the Author

About the Author

Wells C. Bennett is managing editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. His position is supported with a grant from the Markle Foundation. Before coming to Brookings, he was an Associate at Arnold & Porter LLP. Full bio »

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